Bill C-20 (39th Parliament, 2nd Session) Committee on April 2nd, 2008

[The Chair, Liberal, Albina Guarnieri]

I'd like to call the meeting to order.

Pursuant to the order of reference from the House of Commons of February 13, 2008, the Legislative Committee on Bill C-20 will now resume its study of the bill.

I would like to inform the committee that it shall reserve the last 20 minutes at the end of the meeting in camera in order to discuss internal matters, such as what has been done by the subcommittee on agenda and procedure regarding the list of witnesses, the upcoming calendar, and the adoption of the budget. Moreover, as everyone knows, the bells will start ringing at 5:15 sharp for votes. Therefore, we'll have between 80 and 90 minutes with our witnesses today.

I know all of you are eager after the Easter break, after consulting with your constituents about this bill. So I know you're eager to pose our Privy Council officials many questions. Please allow me first to introduce them.

We have as witnesses today: Dan McDougall, director of operations; Isa Gros-Louis, director; and Grégoire Webber.

Welcome. You have the floor.

[Dan McDougall, Director of Operations, Democratic Reform, Privy Council Office]

Thank you, Madam Chair.

We are pleased to be here today to discuss Bill C-20 — the Senate Appointment Consultations Act. We would like to review with the Committee the policy framework for the bill, as well as discuss the structure of the bill, and any details of this legislative proposal.

In the first instance, in order to set the context, I think it may be useful to start off with a brief description of what the bill does not do.

To start with, the bill does not provide for a process for electing senators. Rather, much like the Referendum Act, it sets out a scheme for consultations with Canadians, without binding the Prime Minister or the Governor General to the results of a consultation.

As well, as was discussed briefly with the committee when the minister appeared before you, neither does Bill C-20 amend the Constitution of Canada. Indeed, the bill has been carefully drafted so as not to affect the Governor General's power to appoint senators, the Prime Minister's prerogative to recommend persons for appointment to the Senate, the constitutional qualifications of senators, or indeed the role of the Senate as arbiter of the eligibility of senators.

However, what the bill does do is provide a bank of names of persons from which the Prime Minister may choose to make a recommendation for appointment to the Senate as vacancies arise. Persons appointed from this list will have the democratic support of voters.

The bill provides that a consultation normally will be held in conjunction with a federal general election. The Governor in Council can make an order for consultation, and the consultation process, which relies extensively on the Canada Elections Act, will be administered by the Chief Electoral Officer.

The bill provides that a consultation could also be held in conjunction with a provincial general election, provided that six months' notice is so given.

Bill C-20 provides flexibility as to whether and when to use a consultation, in how many provinces to hold a consultation during a federal or provincial election, and for how many places. The number of places is not determined by the number of vacancies in the Senate. Even if there are no existing vacancies in a province, a consultation may be held for the number of places specified in the order for a consultation. This flexibility may help to ensure that nominees are available to fill seats as they become vacant.

Canadians may register their nominations at any time with the Chief Electoral Officer. They do not need to wait for an order for consultation to be issued. A nominee must be 30 years of age or older, and must be a Canadian citizen. Of course, prior to being called to take up a place in the Senate, a nominee would need to comply with the other eligibility criteria that are set out in the Constitution.

Once registered, nominees may begin to accept contributions for their campaign. The rules governing contributions are based on the rules applicable to candidates for members of Parliament, as outlined in the Canada Elections Act, with some exceptions. For example, candidates for election to the House must wait until an election is called before they can issue receipts for contributions.

Given the different role of parties in the Senate, as compared to the House, political parties will have a limited role in relation to Senate nominees. The bill provides that parties may endorse a nominee, but may not endorse more nominees in a province than there are places specified in the order of a consultation. Parties will not be able to transfer funds to Senate nominees. There will be no Senate-only parties. To conduct advertising, parties will have to register as a third party, and parties will not control the order of nominees on the ballot, nor will candidates be grouped on the ballot by party.

Consultations will be province wide, allowing voters to indicate their preferences amongst all nominees in that province. The voter will be able to rank his or her preferred candidates as one, two, three, and so on, expressing as many or as few preferences as desired, across or within party lines employing whatever criteria are favoured by the voter. The designed principle of the bill is to provide as much flexibility as possible to the voter. Complementing that principle, the proposed voting system, called a single transferable vote or STV, is also designed to reflect as closely as possible the intentions of the voters.

The bill provides that, after counting the votes, a list of selected nominees for each province in which a consultation is held will be submitted by the chief electoral officer to the Prime Minister for his consideration. The bill also provides that the chief electoral officer must also publish this report, along with other details of the vote, in the Canada Gazette without delay.

In the interests of time, perhaps I could just highlight some of the other key provisions of the bill. There are extensive sections of the bill dealing with advertising and communications, with third-party advertising, with financial administration and, of course, a section dealing with enforcement.

As a general statement, these provisions are complementary to comparable provisions in the Canada Elections Act, taking care always to have the least impact possible on the actual functioning of that Act, and making the necessary adaptations of the provisions to reflect the nature of the process created by the Senate consultations bill.

Madam Chair, I thank you for the opportunity to appear before the Committee. We will now be pleased to take questions from the members.

[The Chair, Liberal, Albina Guarnieri]

Thank you, Mr. McDougall.

We'll begin with our first round of questions of seven minutes.

Mr. Maloney.

[John Maloney, Liberal, Welland, ON]

I'm sorry, I came in, in mid-presentation, so I just have some questions that have jumped to mind.

I understand from your presentation that a panel will be elected and the Prime Minister will then make choices or a choice from that panel. So in fact the individual who pulled the highest number of votes may not be given the nod, and an individual who pulled the lowest number of votes could in fact be given the nod to assume the appointment to the Senate. Is that correct?

[Dan McDougall]

Yes, that's correct. The way the process works is that, first off, it depends how many places are being consulted upon for a particular province. It may be the case that there's only one, in which case obviously it becomes somewhat irrelevant because there's only one name that will appear on the list of the chief electoral officer. But should there be more than one, in effect what happens is that every name that appears on that list is there because they have exactly the same number of votes. It may be that they attain those votes at different points in the process. It could be on the first counting of the votes or the subsequent counting of the votes, but everybody on there obtains exactly the same number of votes because of the way the single transferable vote system works. Whereas a quota of votes is determined as to how many votes are required in order to be successful, once you reach that number of votes, that's the number of votes that will appear on that.

If you have more, then the excess votes, the surplus votes, will be transferred to other candidates according to the other preferences that will be expressed by voters on the ballots. So in effect everybody ends up with the same quantity of votes. After that, once the list is developed, there's no obligation on the Prime Minister to make recommendations to the Governor General for appointment based on the order of the list. The flexibility is provided to the Prime Minister to choose whomever he wishes from that list and make that recommendation.

[John Maloney, Liberal, Welland, ON]

In effect, the system is not much different from what we have today, except the choice that the Prime Minister can make is certainly a reduced panel.

If we're talking about an elected Senate, it's not an election in the way that we do the House of Commons; it's being elected to a panel, and the Prime Minister then can willy-nilly pick whom he wishes, which would not necessarily reflect the wishes of those individuals who have voted in the Senate elections. Am I correct?

[Dan McDougall]

It's not an election process, that's correct, in the way we would normally conceive of it. It is really a consultation process. The idea is that the people who are selected from this will have a democratic mandate, but it is not an election process; in fact, the bill is constructed to make sure that the actual selection process and the criteria for selection remain as they are now, because to change to a fully elected process would require a complex constitutional amendment, which this bill doesn't do.

[John Maloney, Liberal, Welland, ON]

Well, if we're talking about democratic reform, would the latter not be preferable, even though it's very complex? If we're talking about real reform in a democratic way, should we not be looking for a truly elected Senate?

[Dan McDougall]

As I understand it, I believe the government's position is that they do favour an elected Senate. I believe it's been articulated in their platform, and they have stated so publicly as a policy intention; however, given the difficulty in achieving an elected Senate--which has its own complications, because of the nature of the amending formula--this alternative provides for a democratic process so that Canadians can be involved in the selection process.

[John Maloney, Liberal, Welland, ON]

So referring to it as an elected Senate is a misnomer. What label would you give this type of system? What would you call it?

[Dan McDougall]

It seems to me that the title of the bill is actually the appropriate way to refer to it. It's a senatorial selection process, a consultation process. Either one, I would think....

The formal title is “An Act to provide for consultations with electors on their preferences for appointments to the Senate”. That's about as descriptive as we were able to get in terms of what the bill is actually attempting to achieve.

[John Maloney, Liberal, Welland, ON]

I want to come back to the idea of a single transferable vote, but first I have a quick one. We've reduced the age requirement from 35 to 30. Is there any reason for that?

[Dan McDougall]

No, I don't believe we've reduced it. I think the age requirement to be a senator is 30, and that's what's maintained here.

[John Maloney, Liberal, Welland, ON]

Again, perhaps I'm a little obtuse, but could you try to explain the single transferable vote system to all of us again? It seems a little....

[Dan McDougall]

This one may take a little while, so with your indulgence....

[The Chair, Liberal, Albina Guarnieri]

I think we'd all benefit from the explanation.

[Dan McDougall]

The single transferrable vote system is a system designed to reflect as closely as possible the preferences of voters. It works in single ridings where you only have one person, in which case it transforms itself into something else called an alternative system—but it works there as well. But its real utility tends to be when there are multiple persons to be selected from a voting process. It doesn't have to be an electoral process; it could be any process that is designed to select anything. That is the intent, to give effect to people's desires.

In terms of how it works, it's actually fairly simple for the voter. I would suggest that it is almost intuitively simple. What it does is that people go into a voting process and express their preferences, one, two, three, etc., in terms of whom they would like to see selected from that process. That's as complicated as it has to get for the individual.

Where it becomes somewhat complicated is for the administrators, who have to understand how the system works. There's a mathematical process associated with it.

The first thing that's done in terms of administrating and counting the votes is that you have to determine the number of votes required for a person to be successful. For members of Parliament and most other elections here in Canada now, with the “first past the post” system, that's fairly easy: it's 50% plus one. When you have more than one member, obviously that number changes. If you have three places, then you need to get one-third of the votes. If you have four places, then you need to get one-quarter of the votes, etc.

So there is a formula that determines the quota of votes necessary to be successful. All the quota is trying to do is to make sure that when the votes are counted.... Should you arrive at a situation where everybody splits their vote equally among all the candidates, and you have three places to be elected, the quota is designed to ensure that only three people can be successful, not four, just as 50% plus one means that one person gets 51% and the other 49%. There's only one person who can be elected. The quota is designed to ensure that if you have four places, only four people can get that number, not five. If there are three places, only three people can get that number. It's just a simple mathematical formula to determine how many votes you need, so that you're sharing the votes equally.

Once the quota is determined, then you start to look at the ballots and the preferences that have been expressed by the voters on those ballots. As I mentioned, the voter goes in and ranks the candidates on the voting list, one, two, three, four, etc., according to however many preferences they wish to express. And this bill has been designed to try to give as much flexibility as possible to the voter to decide how they want to follow that procedure. So if they only know one candidate and only want to vote for the one candidate, the bill allows them to just mark one and they will still have a perfectly valid ballot. If they know two candidates and they want to express their preferences about one and two, that's fine as well. If there are 17 candidates and they want to go from 1 through 17, they can do that as well.

So the intention of the bill is to give the maximum flexibility to the voters to express their preferences as they wish.

So far, we have determined the quota, that is, how many votes are required for someone to be successful. The next step in the process is to look a the ballots, and the first step is to count up how many first preferences the voters have expressed for all of the candidates. So you would look at the number of first-place preferences on the ballots and count up those. If I'm a candidate and the quota is determined to be 50 and I have 50-plus first-place preference votes, then my name goes on the list automatically. If, for example, there were three Senate places being considered for a province, and they count up all the first-place preferences and three people have more than 50 votes, then all three would go on the list and that would be the end of it.

It gets a little more complicated when you count up the first preferences and nobody makes the list, or one person makes the list and you still have two more. Then as a first step you take the successful person, and if they received more votes than necessary to be selected, you take their surplus votes and transfer them to other candidates who have not yet been successful. So you look at the second preferences on those ballots, and those votes, as expressed by the voter, are then transferred over to other candidates. Once that has been done, you look again to see whether those people have attained the quota, and if so, you stop; if not, you continue the process. And the process just continues on and on.

If at any point after the transfer of surplus votes—that is, I received more votes than I needed as a candidate and those have been transferred to other candidates—nobody has yet attained a quota and you still have places to fill, then you go to the other end and start dropping the candidates who received the least number of votes. You go to the end of the list, and the person who got the least number of votes is eliminated from the counting process. On those ballots, you look at who the second preference was, or the next available preference, and then you transfer those votes to the other candidates who the voters expressed as their second preference.

In this case, it would be number two, but if it were later in the process, the words in the bill refer to “the next available preference”. So it depends on where you are in the process.

[The Chair, Liberal, Albina Guarnieri]

I see that your explanation is provoking many more questions.

Monsieur Paquette.

[Pierre Paquette, Bloc, Joliette, QC]

For everyone's benefit, I think it might be useful for you to provide us with an example in writing. I was going through the exercise while you were giving your explanation. Supposing there are five seats to fill in Quebec and some two million voters. You say that you need plus one to ensure that six candidates will not be elected, rather than five. I know it's a matter of doing the math, but why isn't it 400,000 votes in this case, rather than 333,334? I would like you to provide us with an example in writing showing how to transfer the surplus votes. I know that this system is used in other countries.

Supposing a candidate does not meet the quota. I want to go back to my example. There are five Senate seats to be filled in Quebec, and two million people are voting. There are several candidates, but none meets the quota of 333,334 votes. What happens then? Do we abolish the Senate?

[Dan McDougall]

It will be impossible to arrive at that result, because the quota is determined by the number of votes. That is the first step. In each case, it is clear that one candidate will be elected.

[Pierre Paquette, Bloc, Joliette, QC]

Yes, but supposing these Senate seats are highly sought after and there are 100 candidates for five seats, but only two million voters. It is highly unlikely—unless a high-profile star decides to run—that many candidates will receive more than 333,334 votes. What happens then? Supposing all the candidates only receive 200,000 votes or less.

[Dan McDougall]

In each case, it is the number of votes that determines the process.

[Pierre Paquette, Bloc, Joliette, QC]

That would mean that the quota would no longer be applicable. Number one would be the person with the most votes. Then, there would be the second choice, perhaps with a transfer. But at that point, there is no longer…

[Dan McDougall]

At that point, the quota would be lower than in other circumstances. It is not necessarily associated with the number…

[Pierre Paquette, Bloc, Joliette, QC]

I would like you to provide us with a simple and instructional simulation. I'm sure the Privy Council Office is capable of doing that.

I also have some other questions for you. In terms of advertising, if a party decides to support candidates—Bloc Québécois candidates, for example; we can always dream—under what conditions could it do so? Could there be direct transfers? I would be very surprised if there were Bloc Québécois candidates, but let's just say they are Conservatives, Liberals and—we're dreaming in technicolour again—New Democrats. Can a party make a direct transfer? How can that support for a candidate be expressed?